United States v. Brunner ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4987
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GREGORY DONALD BRUNNER,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00016-RLV-DSC-1)
Submitted: August 17, 2010 Decided: August 27, 2010
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lawrence W. Hewitt, Justin N. Davis, GUTHRIE, DAVIS, HENDERSON &
STATON, P.L.L.C., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Donald Brunner pled guilty to transporting
computer files that contained visual depictions of minors
engaging in sexually explicit conduct, in violation of 18
U.S.C.A. § 2252(a)(1), (b)(1) (West 2000 & Supp. 2010), and
possession of a computer and computer disks that contained
numerous images of minors engaging in sexually explicit conduct,
in violation of 18 U.S.C.A. § 2252(a)(4)(B), (b)(2) (West 2000 &
Supp. 2010). The district court sentenced Brunner to 151 months
of imprisonment and Brunner timely appealed. Counsel for
Brunner filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that there are no meritorious grounds for
appeal, but questioning whether the district court abused its
discretion by imposing a two-level enhancement, pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 2G2.2(b)(3)(F) (2008),
when the parties did not stipulate to that specific offense
characteristic in the plea agreement. Brunner did not file a
pro se supplemental brief, although informed of his right to do
so. The Government elected not to file an answering brief.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Evans, 526 F.3d 155, 161 (4th
Cir. 2008). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
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see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
To determine “whether a district court properly applied the
advisory Guidelines, including application of any sentencing
enhancements, we review the district court's legal conclusions
de novo and its factual findings for clear error.” United
States v. Layton, 564 F.3d 330, 334 (4th Cir.), cert. denied,
130 S. Ct. 290 (2009).
Here, the plea agreement specifically acknowledged
that enhancements beyond those enumerated in the plea agreement
could be assessed, stating: “These stipulations do not affect
either party’s right to argue in favor of, or against, [USSG §]
2G2.2 enhancements and/or reductions not listed above.” Thus,
the Government was entitled to argue in support of the
enhancement Brunner now challenges.
Moreover, the district court correctly determined that
the challenged enhancement was warranted. In Layton, this court
explained that “[t]he term ‘distribution’ is broadly defined as
‘any act, including possession with intent to distribute,
production, advertisement, and transportation, related to the
transfer of material involving the sexual exploitation of a
minor.’” Layton, 564 F.3d at 335 (quoting USSG § 2G2.2 cmt.
n.1). Thus, this court joined the Seventh, Eighth, and Eleventh
Circuits in holding that where ― as here ― a defendant knowingly
uses a peer-to-peer file-sharing program that allows others to
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access child pornography files, that action warrants an
enhancement pursuant to USSG § 2G2.2(b)(3)(F). Id. Like the
defendant in Layton, Brunner knowingly used a file-sharing
program to find and exchange contraband. Accordingly, the
district court properly assessed the two-level enhancement.
Having reviewed the record in this case and finding no
meritorious issues for review, we affirm the district court’s
judgment. This court requires that counsel inform Brunner in
writing of his right to petition the Supreme Court of the United
States for further review. If Brunner requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Brunner. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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